131 / 350
MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…
organ of public administration has made a final decision on the individual’s freedoms
or rights or on his/her obligations specified in the Constitution.
48
Accordingly, the fact that the contested acts are of EU origin is reflected only in
a special character of the review. In this respect, the Polish Constitutional Tribunal
emphasises the need to maintain due caution and restraint, because the principle of
sincere cooperation requires that the Member States facilitate the achievement of the
Union’s tasks and refrain from any measure which could jeopardise the attainment
of the Union’s objectives. Hence, the court endeavours to avoid the state of non-
conformity of EU law to the Constitution. This assumption gives rise to an obligation
to “approach the EU norms with the utmost respect”. Therefore, a ruling declaring
the non-conformity of EU law to the Constitution ought to appear only when all
other ways of resolving a conflict between constitutional rules and the rules of the
EU legal order have failed.
49
The proclaimed cooperative spirit of the above-mentioned constitutional reviews
does not change the fact that these reviews are contrary to the ECJ’s case-law and, in
particular, to
Åkerberg Fransson
and
Melloni
, as they compromise the primacy, unity
and effectiveness of EU law. In
Melloni
, the Court of Justice has clearly reconfirmed
the relevance of its settled case-law on the relationship between the EU law and
national law. Pursuant to this case-law, the principle of primacy of EU law, which is
an essential feature of the EU legal order, does not allow the rules of national law on
fundamental rights, even of a constitutional order, to undermine the effectiveness of
EU law on the territory of a Member State.
50
While the approach of the French, German and Polish Constitutional Courts are
rather clear on the review of compliance of fundamental rights by EU law, several other
constitutional courts have not sufficiently clarified their position, or, more specifically,
they have not indicated to which extent it is valid after the Treaty of Lisbon. This
is the case, in particular, for the Czech Constitutional Court. The latter held in its
Lisbon I ruling
that “[a]s regards possible conflict between the standard of protection
of human rights and fundamental freedoms ensured by the constitutional order
of the Czech Republic and the standard ensured in the European Union, it is
appropriate to point out that protection of fundamental rights and freedoms falls
in the area of the “material core” of the Constitution, which is beyond the reach of
the constitutional framers … If, from this point of view, the standard of protection
ensured in the European Union were unsuitable, the bodies of the Czech Republic
would have to again take over the transferred powers, in order to ensure that it was
observed”.
51
48
SK 45/09
, points 1.5 and 2.2.
49
SK 45/09
, points 2.6 and 2.7.
50
Melloni
, paragraph 59. See also Case 11/70
Internationale Handelsgesellschaft
[1970] ECR 1125,
paragraph 3, and Case C-409/06
Winner Wetten
[2010] ECR I-8015, paragraph 61.
51
Judgement of 26 November 2008, Pl. ÛS 19/08
, Lisbon I ruling
, published under 446/2008 Sb.,
N 201/51 SbNU 445, paragraph 196.